Judge Upholds Demand for Microsoft’s Irish Data

MANHATTAN (CN) – After nearly two hours of argument, a federal judge upheld a magistrate’s order forcing Microsoft to turn over a user’s data held by its subsidiary in Dublin, Ireland. “The production of that information is not an intrusion on the foreign sovereign,” U.S. District Judge Loretta Preska ruled at the end of the closely-watched hearing. “It is incidental at best.” The information that she spoke about involves the contents of a search warrant from December requiring the tech giant to release a user’s emails, associations, identifying information and contacts with the company’s support-services personnel. Microsoft provided the data contained on its U.S. servers and tried to quash the data requests for information held abroad, but U.S. Magistrate Judge James Francis rejected that motion in a lengthy opinion in April. The case has ignited controversy about the U.S. government’s power to seize emails in the age of cloud computing. Some civil libertarians worried about the implications of giving U.S., state and local law enforcement the power to read emails far outside their borders. Francis argued that these concerns did not apply because the search was a “hybrid” of a warrant and a subpoena for records belonging to the company. The Secure Communications Act, passed by Congress in 1986, governs the procedures the government must follow to get data held by Internet service providers. The magistrate’s decision carved out a distinction between so-called “SCA warrants” and traditional ones. Joshua Rosenkranz, representing Microsoft for the firm Orrick, Herrington & Sutcliffe LLP, argued that there was no difference without the consent or knowledge of the foreign government. Microsoft contends that the government’s position end runs a process traditionally performed through a Mutual Legal Assistance Treaty, also known as an MLAT. “Is that an invasion of Irish sovereignty?” he asked. “Of course it is. We would consider it an invasion of our sovereignty.” Assistant U.S. Attorney Serrin Turner countered, “Life is not that simple,” because this process tends to be slow and the emails might be held on servers of countries that do not have an MLAT. He added that “we’re not talking about an Irish user,” but rather the subsidiary where the data is held. Its parent company, Microsoft, is based in Redmond, Wash. “The provider is ten feet away from me,” Turner remarked, gesturing to his adversary’s table. Calling this a “very, very dangerous principle,” Rosenkranz warned the judge that China, Russia and the United Arab Emirates could cite her decision as “Exhibit A” to sift through users’ information held on their servers in their countries. And their reasoning would have the imprimatur of “one of the most respected judges in the United States,” he added. “Oh, I bet you say that to all the girls,” quipped Preska, who is the chief judge of the Southern District of New York. Brushing this problem aside as a “diplomatic issue,” Turner remarked, “Other countries are going to do what other countries are going to do. … That is something for the executive to pursue through political [and] diplomatic channels.” Rosenkranz replied that, although it is a “diplomatic problem, to be sure,” it is also a “Congressional problem.” “The explosion of digital media is something Congress could never have contemplated,” he said, noting that the legislation is nearly three decades old. He added later: “Congress is the one weighing the parade of horribles against the law enforcement impact.” Unconvincing, Preska upheld the magistrate’s order, which she said was “not an extraterritorial application of U.S. law.” She agreed to stay her decision until Microsoft had the opportunity to file a 2nd Circuit appeal. The hold may be extended upon consent by the government. Microsoft’s general counsel Brad Smith emphasized in a statement that Preska’s decision “would not represent the final step in this process.” “We will appeal promptly and continue to advocate that people’s email deserves strong privacy protection in the U.S. and around the world,” he wrote.